Let My People Pee…aka the American Public Restroom Wars

A friend on Facebook recently asked me for my thoughts on the issue of transgendered people in public restrooms and laws forcing them to use the bathroom of their birth gender. My personal feelings are that this is much ado about nothing, and that bigots are using the same sort of fear-mongering we saw in past equality struggles by other oppressed groups.

The premise for these bathroom laws is that transgendered people may really be just men who are faking it in order to gain access to public women’s restrooms where they can molest children. Thus, in order to protect the children from child molesters, we must force people to use the restroom associated with their birth gender. This is a stupid argument that fails on many levels and is harmful to all involved, including children.

First and foremost, this is a xenophobic argument. It equates transgendered people, and men in general, with child molesters. It harkens back to the days when people justified discrimination against homosexuals being employed as teachers on the basis that it would expose school children to sexual abuse with the implication that gay men are all secretly pedophiles. When all else fails, the last refuge of bigots and hatemongers is always the cry of “What about the children?”

Of course, like all laws arising from bigotry, these laws are rooted ignorance. Politicians such as Ted Cruz and supporters of bathroom gender laws sometimes claim that their fear is that crossdressing men would use the women’s room in order to gain access to children. However, this is not an issue of crossdressers. The distinction between crossdressing and transgender is important in this debate. Crossdressers are people who wear the clothing of the opposite gender, but do not see themselves as being that gender. Transgendered people prefer to wear the clothing of the gender with which they identify. There are also people who are born intersexed, that is, with anatomy that is neither male or female (all fetuses start out as female, but development can go awry). Gender and sexual orientation are also distinct characteristics, but we tend to try to lump them together, which is a mistake that I suspect is probably rooted in the fact that the majority of the population is heterosexual and assumes that boys like girls and vice versa.

We currently have very strong laws in place that can be used to prosecute child molesters in all areas of our society, not just bathrooms. Short of implementing an army of bathroom police to check the birth-gender of people entering bathrooms, the bathroom gender laws currently being discussed are pretty useless to stop people who would seek to disguise their genders in order to access children in public restrooms. From a public policy perspective, these laws are just plain foolish.

The gender bathroom laws are rooted in a hatred and mistrust of male sexuality that we seem all too tolerant of in our society. Ted Cruz says it plainly when he states “I can tell you it doesn’t make any sense to allow adult grown men strangers to be alone in a bathroom with little girls”. Yes, some men abuse others sexually and act as predators. We tend to assume that such behavior is limited to men, but women make up 12% of those who are convicted of molesting children under the age of 6. More importantly, such abusers are not the overwhelming majority of men or women. Yet consider that many airlines have adopted policies that forbid seating unaccompanied minors next to men on airplanes. Male homosexuality remains much less socially accepted than lesbianism. There is a stereotype that male bisexuals are unsuitable as partners because they incapable of committing. We justify the laws that ban women from going topless on beaches by the claim that men who are exposed to a female breast will instantly lose control of themselves and become rapists. In other words, inside every man is a sexual predator just waiting to be released. Utter nonsense maybe, but the messages are clear and repetitive. What is communicated by these stereotypes, laws, and policies to our male children about themselves and about the adults they are growing into?

However foolish I see them, bathroom laws may or may not be unconstitutional. Laws that make gender-based distinctions are not automatically unconstitutional under current American law. Such laws when reviewed by the Courts are subject to what is known as “intermediate scrutiny”. To pass constitutional review under the intermediate scrutiny test, a law must show that it furthers a legitimate governmental interest in a way that is substantially related to that interest. I suspect that there will be little debate over whether or not the protection of children from sexual abuse is a legitimate government interest. The focus of review for these laws is going to be whether or not restricting bathroom use to birth gender is substantially related to the protection of children. If this winds up before the Supreme Court, I think the outcome is going to be greatly influenced by whether or not the government can show that there has been a pattern of people using bathrooms designed for the gender that’s other than their birth gender who have also been found to molest and abuse children. ABC News just published a story in which it reported that more than 200 organizations that work with sexual assault and domestic violence survivors have come out in opposition to laws restricting bathroom use to birth gender, calling the claim of the transgendered predator a “myth”.

In closing, I want to say that my thoughts on this matter actually go back to the text of the Torah and the most repeated commandment in the Hebrew Bible; “You shall welcome and not oppress the stranger in your midst.” From my perspective, these laws are nothing more than an attempt to make life more difficult for people who already are facing difficulties that I can only imagine. If we want to protect our children from molestation in public bathrooms we can easily do so in a variety of ways that don’t involve creating hardships for other people. We don’t need to further oppress a group of people who have already known more rejection and abuse than one should ever have to experience in this life.